Possession has to be proved by the plaintiff.

The third defendant in O.S.No.424 of 1981 on the file of the Court of the Additional District Munsif, Padmanabhapuram, is the appellant in this Court.

2. The suit was filed for declaration and injunction.

3. The case of the plaintiff is that Survey No.5842 of Aloor Village consisted of two letters, namely, ‘A’ letter having an extent of 60 cents and ‘B’ letter having 95 cents. The total extent of one acre 55 cents lies together as a single property. It is a joint family property and plaintiff is in possession of ‘A’ letter. ‘B’ letter is a trust property. The plaintiff is performing ceremonies attached to the trust. The plaintiff was in Indian Army. He leased out the suit property to one Ayyappan Nair, a friend of the first defendant. He constructed a tea shop and he is running the business. Second and third defendants have no right or possession over the suit property. Since they attempted to trespass into the suit property, the suit was filed.

4. Defendants 1 to 3 have filed a common written statement. ‘B’ letter was ajoint family property. Plaintiff cannot claim exclusive possession or right over ‘B’ letter. The defendants are having independent title and they are in possession. First defendant is in possession of 5 cents at the south western corner in the suit property. He is the absolute owner of the same. There is no attempt of trespass by second and third defendants. The other sharers have sold the property to the defendants. They are in legal possession. The suit is bad for non-joinder of other sharers. Originally, the suit property belonged to three brothers. Survey No.5842-A was allotted for common enjoyment.

.5. The fourth defendant has filed a, separate written statement. He contended that the entire 1 acre 55 cents of ‘A’ and ‘B’ letters in Survey No.5842 lie separately in different pieces with boundaries and fences. Defendants 1 to 3 have independent title. First defendant is the absolute owner of 5 cents. Plaintiff is not entitled to represent joint family. The suit is bad for non-joinder of necessary parties. ‘A’ letter belonging to three brothers, namely, Ramaswami, Sivathanu and Perumal. There is no burial ground in the suit property. Three brothers dealt with the properties separately. Fourth defendant, son of Kumaravelu, became entitled to l/3rd share over 1 acre 52 cents, i.e., 50 and 2/3 cents in suit property.

6. The trial court framed four issues and two additional issues. After consideration of the evidence the trial court dismissed the suit. However, on appeal, the lower appellate court reversed the judgment and decree of the trial court and granted a decree in favour of the plaintiff. Aggrieved by the same, the third defendant has filed the above second appeal.

7. The main contention urged in the second appeal is whether the sale deed executed in favour of the third defendant under Ex.B-5, dated 110. 1980 by the fourth defendant and others in respect of 1 acre 10 cents in both ‘A’ and ‘B’ letters is a valid one. The contention urged by the learned counsel for the respondents is that admittedly ‘B’ letter is a trust property, while ‘A’ letter property is a burial ground set apart for the members of the family. Therefore, the sale of these two items varied by Ex.B-5 cannot be valid.

8. The trial court has given a clear finding as regards the ‘A’ letter property. It simply states that as claimed by fourth defendant, the sharers will be competent to convey their sharers in ‘A’ letter. However, it has said that as the defendants 1 to 3 claim right under the other co-sharers, the defendants 1 to 3 cannot be termed as trespasser or stranger. As the co-sharers are necessary parties, and as they are not impleaded, the suit was dismissed by the trial court.

.9. The appellate court has also stated that Exs.B-2, B-4, B-5 and B-6 have been executed by the fourth defendant and other members of the family. Then, it is also found that under Ex.A-4 partition, ‘A’ letter property was set apart to be